Citation Nr: 0947855
Decision Date: 12/17/09 Archive Date: 12/31/09
DOCKET NO. 04-42 240 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to a higher initial disability rating for
post-traumatic cervical myeloradiculopathy (right, C6, C7,
and C8 roots) than 10 percent for the period prior to May 15,
2007, and 20 percent for the period from May 15, 2007.
2. Entitlement to an effective date earlier than October 19,
2006 for a total disability rating based upon individual
unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
H. E. Costas, Counsel
INTRODUCTION
The Veteran served on active duty from August 1967 to
September 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from July 2002 and April 2007 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Newark, New Jersey. The July 2002 rating
decision granted service connection for post-traumatic
cervical myeloradiculopathy (right, C6, C7, and C8 roots) and
assigned an initial disability rating of 10 percent,
effective from July 17, 2001. In July 2003, the Veteran
entered a notice of disagreement with the initial rating
assigned. A statement of the case was issued on October 25,
2004. The Veteran entered a timely substantive appeal on
this initial rating issue that was received on December 3,
2004. By subsequent rating decision of July 2007 during the
pendency of the initial rating appeal, a 20 percent
"staged" initial rating was granted for the period from
May 15, 2007.
The Veteran's claim for TDIU was received on August 30, 2002.
An April 2007 rating decision granted service connection for
TDIU and assigned an effective date of October 19, 2006. In
April 2007, the Veteran entered a notice of disagreement with
the effective date of TDIU. A statement of the case
addressing the TDIU effective date was issued on May 4, 2007.
The Veteran entered a timely substantive appeal
(representative's brief) on this TDIU issue that was received
in December 2007.
In January 2008, the Board remanded these issues to the RO
for further development that included a VA examination and
opinions, and to readjudicate the cervical spine initial
rating appeal under the criteria for rating intervertebral
disc disease. The old Diagnostic Code 5293 provided for
rating intervertebral disc syndrome, and the revised rating
criteria of Diagnostic Code 5243 provided for rating
intervertebral disc disease. The Board noted that the RO had
included Diagnostic Code 5293 rating criteria in the
supplemental statements of the case, but had not actually
adjudicated the cervical spine initial rating under
Diagnostic Code 5293.
In a September 2009 supplemental statement of the case, the
RO adjudicated the Veteran's cervical spine disability under
both the old and new rating criteria, fulfilling the January
2008 Board remand order. Diagnostic Code 5293 criteria were
previously given in July 2007 supplemental statement of the
case.
FINDINGS OF FACT
1. For the initial rating period prior to May 15, 2007, the
service-connected post-traumatic cervical myeloradiculopathy
(right, C6, C7, and C8 roots) is shown to more nearly
approximate moderate limitation of motion of the cervical
spine.
2. Throughout the pendency of this appeal, post-traumatic
cervical myeloradiculopathy (right, C6, C7, and C8 roots) is
not shown to be productive of disability that more nearly
approximates severe limitation of motion; severe
intervertebral disc syndrome; forward flexion of 15 degrees
or less; or intervertebral disc syndrome with incapacitating
episodes having a total duration of at least four weeks but
less than six weeks during the past 12 months.
3. The evidence does not demonstrate that the Veteran's
service-connected disabilities caused his unemployability
prior to October 19, 2006.
CONCLUSIONS OF LAW
1. Resolving reasonable doubt in the Veteran's favor, for
the initial rating period prior to May 15, 2007, the criteria
for an initial rating of 20 percent for post-traumatic
cervical myeloradiculopathy (right, C6, C7, and C8 roots)
have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38
C.F.R. §§ 4.3, 4.7, 4.40. 4.45, 4.59, 4.71a, Diagnostic Codes
5003, 5290, 5293 (as in effect prior to September 23, 2002);
38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect
September 23, 2002); 38 C.F.R. § 4.71a, Diagnostic Codes
5235-5243 (as in effect September 26, 2003).
2. Throughout the pendency of this appeal, the criteria for
an initial disability rating higher than 20 percent for post-
traumatic cervical myeloradiculopathy (right, C6, C7, and C8
roots) have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West
2002); 38 C.F.R. §§ 4.40. 4.45, 4.59, 4.71a, Diagnostic Codes
5003, 5290, 5293 (as in effect prior to September 23, 2002);
38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect
September 23, 2002); 38 C.F.R. § 4.71a, Diagnostic Codes
5235-5243 (as in effect September 26, 2003).
3. The criteria for an effective date earlier than October
19, 2006 for the award of a TDIU are not met. 38 U.S.C.A. §§
5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102,
3.155, 3.159, 3.400, 4.15, 4.16 (20089).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
After having carefully reviewed the record on appeal, the
Board has concluded that the notice requirements of VCAA have
been satisfied with respect to the issues decided herein.
The RO sent the Veteran letters in August 2001 and April
2003, prior to adjudication, which informed him of the
requirements needed to establish entitlement to service
connection for a cervical spine disability and entitlement to
individual unemployability. Service connection was
subsequently granted for post-traumatic cervical
myeloradiculopathy (right, C6, C7, and C8 roots) and for
TDIU. In accordance with the requirements of VCAA, the
letters informed the Veteran of what evidence was necessary
to substantiate the claim, what evidence and information he
was responsible for, and the evidence that was considered
VA's responsibility.
Although the Veteran was not specifically notified of the
requirements to establish entitlement to a higher initial
rating, the VA General Counsel has interpreted that
38 U.S.C.A. § 5103(a) does not require VA to provide notice
of the information and evidence necessary to substantiate
newly raised or "downstream" issues, such as the claims for
increased compensation or an earlier effective date following
the initial grant of service connection for a disability, in
response to notice of its decision on a claim for which VA
has already given the appropriate 38 U.S.C.A. § 5103(a)
notice. See VAOPGCPREC 8-2003. With respect to the initial
rating appeal that arises from disagreement with the initial
rating following the grant of service connection for cervical
spine disability, the courts have held that once service
connection is granted the claim is substantiated, additional
VCAA notice is not required; and any defect in the notice is
not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed.
Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
For these reasons, the Board finds that appropriate notice
has been given in this case with respect to the initial
rating. Notwithstanding, the Veteran was informed of the
requirements needed to establish entitlement to an higher
initial rating by means of letters dated in July 2006 and
March 2008.
VA has a duty to assist the claimant in obtaining evidence
necessary to substantiate a claim. VCAA also requires VA to
provide a medical examination when such an examination is
necessary to make a decision on the claim. 38 U.S.C.A. §
5103A(d); 38 C.F.R. § 3.159. There are relevant VA and
private records on file. Additionally, the Veteran was
afforded VA examinations in September 2001, May 2002, May
2003, July 2004, March 2007, and in May 2007.
The Board concludes that all available evidence that is
pertinent to the claims has been obtained and that there is
sufficient medical evidence on file on which to make a
decision on the issues. The Veteran has been given ample
opportunity to present evidence and argument in support of
his claims. The Board additionally finds that general due
process considerations have been complied with by VA. See 38
C.F.R. § 3.103 (2009).
Disability Rating Laws and Regulations
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects his ability to function under the ordinary
conditions of daily life, including employment, by comparing
his symptomatology with the criteria set forth in the
Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1. Separate diagnostic codes identify various
disabilities and the criteria for specific ratings.
If two disability evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
evaluation. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.1. After careful consideration of the
evidence, any reasonable doubt remaining will be resolved in
favor of the Veteran. 38 C.F.R. § 4.3.
As in this case, where the Veteran is appealing the initial
assignment of a disability rating, the severity of the
disability is to be considered during the entire period from
the initial assignment of the evaluation to the present time.
Fenderson v. West,
12 Vet. App. 119 (1999). A Veteran may experience multiple
distinct degrees of disability that might result in different
levels of compensation from the time of the initial rating
period until a final decision is made. Hart v. Mansfield, 21
Vet. App. 505 (2007). The analysis in the following decision
is undertaken with consideration of the possibility that
different ratings may be warranted for different time
periods.
Under 38 C.F.R. § 4.40, functional loss may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant on motion. The Board notes that
disability of the musculoskeletal system is the inability to
perform normal working movement with normal excursion,
strength, speed, coordination, and endurance, and that
weakness is as important as limitation of motion, and that a
part which becomes disabled on use must be regarded as
seriously disabled. However, a little-used part of the
musculoskeletal system may be expected to show evidence of
disuse, through atrophy, for example. 38 C.F.R. § 4.40. The
provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate
inquiry into whether there is limitation of motion, weakness,
excess fatigability, incoordination, and impaired ability to
execute skilled movements smoothly, and pain on movement,
swelling, deformity, or atrophy of disuse. Instability of
station, disturbance of locomotion, interference with
sitting, standing, and weight-bearing are also related
considerations.
Since the Veteran filed his claim for service connection in
July 2001, there have been a number of changes in the
criteria for rating musculoskeletal disabilities under 38
C.F.R. § 4.71a, including a cervical strain under Diagnostic
Code 5290. The new criteria for rating residuals of a
cervical compression fracture became effective September 26,
2003. The statements of the case issued in December 2006 and
May 2007 notified the Veteran of the new rating criteria.
Accordingly, adjudication of his claim may go forward. See
Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Given the
change in law, VA may only apply the old rating criteria for
a cervical strain for the entire initial rating period,
including prior to September 26, 2003, and it may only
consider the new rating criteria for the rating period
beginning on September 26, 2003. Kuzma v. Principi, 341 F.3d
1327 (Fed. Cir. 2003).
Diagnostic Code 5290, the old criteria, a slight limitation
of motion of the cervical spine warranted a 10 percent
evaluation, a moderate limitation of cervical motion
warranted a 20 percent evaluation, and a severe limitation of
cervical motion warranted a 30 percent disability evaluation.
This was the maximum available rating based on a limitation
of motion of the cervical spine. Under
38 C.F.R. § 4.71a (2003).
Ankylosis of the cervical spine warranted a 40 percent
evaluation if unfavorable, and 30 percent if favorable. 38
C.F.R. § 4.71a, Diagnostic Code 5287 (2003). Ankylosis is
the fixation of a joint. Dinsay v. Brown, 9 Vet. App. 79
(1996).
Diagnostic Code 5293 provides that pronounced intervertebral
disc syndrome, with persistent symptoms compatible with
sciatic neuropathy with characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other neurological
findings appropriate to site of diseased disc, with little
intermittent relief, warrants a 60 percent evaluation. Severe
intervertebral disc syndrome, with recurring attacks, with
intermittent relief, warrants a 40 percent evaluation. For
moderate intervertebral disc syndrome, with recurring
attacks, a 20 percent rating is warranted. Mild
manifestations warrant a 10 percent rating. Postoperative,
cured intervertebral disc syndrome warrants a noncompensable
evaluation. 38 C.F.R. § 4.71.
Under the old criteria, intervertebral disc syndrome
(preoperatively or postoperatively) was rated either on the
total duration of incapacitating episodes over the previous
12 months or by combining under 38 C.F.R. § 4.25 separate
evaluations of its chronic orthopedic and neurologic
manifestations along with evaluations for all other
disabilities, whichever method resulted in the higher
evaluation. Under the old rating criteria, a 10 percent
rating was warranted for incapacitating episodes having a
total duration of at one week but less than two weeks during
the previous 12 months. A 20 percent rating was warranted
for incapacitating episodes having a total duration of at
least two weeks but less than four weeks during the previous
12 months. A 40 percent rating was warranted for
incapacitating episodes having a total duration of at least
four weeks but less than six weeks during the previous 12
months. A 60 percent rating was warranted for incapacitating
episodes having a total duration of at least six weeks during
the previous 12 months. 38 C.F.R. § 4.71a, Diagnostic Code
5293.
An incapacitating episode was a period of acute signs and
symptoms due to intervertebral disc syndrome that required
bed rest prescribed by a physician and treatment by a
physician. "Chronic orthopedic and neurologic
manifestations" meant orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that
were present constantly, or nearly so. 38 C.F.R. § 4.71a,
Diagnostic Code 5293, Note (1).
When the Veteran filed his claim in July 2001, the neurologic
manifestations of his lumbar spine disability were rated in
accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8520. A
10 percent rating was warranted for mild, incomplete
paralysis of the sciatic nerve. A 20 percent rating was
warranted for moderate incomplete paralysis, while a 40
percent rating was warranted for moderately severe incomplete
paralysis of the sciatic nerve. A 60 percent rating was
warranted for severe incomplete paralysis with marked
muscular atrophy.
Effective September 23, 2002, a 40 percent rating was
warranted for moderately severe, incomplete paralysis of the
sciatic nerve, while a 60 percent rating was warranted for
severe incomplete paralysis of the sciatic nerve with marked
muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520
(2003).
Effective September 26, 2003, VA again revised the rating
schedule with respect to evaluating intervertebral disc
syndrome. 68 Fed. Reg. 51454-51456 (August 27, 2003) (now
codified as amended at 38 C.F.R. § 4.71a, Diagnostic
Code 5243). Under the revised regulations, intervertebral
disc syndrome is to be rated in one of two ways: either on
the basis of the total duration of incapacitating episodes
noted above (now codified at 38 C.F.R. § 4.71a, Diagnostic
Code 5243) or on the basis of the following general rating
formula, which also provides that the noted ratings may be
assigned with or without symptoms such as pain (whether or
not it radiates), stiffness, or aching in the area of the
spine affected by residuals of injury or disease.
The revised rating criteria, the General Rating Formula for
Diseases and Injuries of the Spine, provides a 10 percent
disability rating for forward flexion the cervical spine
greater than 30 degrees but not greater than 40 degrees; or,
combined range of motion of the cervical spine greater than
170 degrees but not greater than 335 degrees; or, muscle
spasm, guarding, or localized tenderness not resulting in
abnormal gait or abnormal spinal contour; or, vertebral body
fracture with loss of 50 percent or more of the height. A 20
percent disability rating is assigned for forward flexion of
the cervical spine greater than 15 degrees but not greater
than 30 degrees; or, the combined range of motion of the
cervical spine not greater than 170 degrees; or, muscle spasm
or guarding severe enough to result in an abnormal gait or
abnormal spinal contour. A 30 percent disability rating is
assigned for forward flexion of the cervical spine 15 degrees
or less; or, favorable ankylosis of the entire cervical
spine. A 40 percent disability rating is assigned for
unfavorable ankylosis of the entire cervical spine. A 100
percent disability rating is assigned for unfavorable
ankylosis of the entire spine. 38 C.F.R. § 4.71a.
For VA compensation purposes, unfavorable ankylosis is a
condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion
or extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis. General Rating Formula for Diseases and
Injuries of the Spine, Note (5).
The Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes (effective September 26, 2003)
provides a 10 percent disability rating for IVDS with
incapacitating episodes having a total duration of at least
one week but less than 2 weeks during the past 12 months; a
20 percent disability rating for IVDS with incapacitating
episodes having a total duration of at least 2 weeks but less
than 4 weeks during the past 12 months; a 40 percent
disability rating for IVDS with incapacitating episodes
having a total duration of at least 4 weeks but less than 6
weeks during the past 12 months; and a 60 percent disability
rating for IVDS with incapacitating episodes having a total
duration of at least 6 weeks during the past 12 months. 38
C.F.R. § 4.71a.
Note (1) to Diagnostic Code 5243 (effective September 26,
2003) provides that, for purposes of ratings under Diagnostic
Code 5243, an incapacitating episode is a period of acute
signs and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician. Note (2) provides that, if intervertebral disc
syndrome is present in more than one spinal segment, provided
that the effects in each spinal segment are clearly distinct,
each segment is to be rated on the basis of incapacitating
episodes or under the General Rating Formula for Diseases and
Injuries of the Spine, whichever method results in a higher
evaluation for that segment. 38 C.F.R.
In considering the changes, effective September 26, 2003, the
Board notes that the regulations no longer require the
orthopedic and neurologic manifestations to be evaluated
separately and then combined. Rather, any associated
objective neurologic abnormalities, including, but not
limited to, bowel or bladder impairment, separately, are to
be evaluated under an appropriate Diagnostic Code. General
Rating Formula for Diseases and Injuries of the Spine, Note
(1).
Where a law or regulation changes after the claim has been
filed, but before the administrative or judicial process has
been concluded, the version most favorable to the veteran
applies unless Congress provided otherwise or permitted the
Secretary of VA to do otherwise and the Secretary did so.
VAOGCPREC 7-2003. The Board will, therefore, evaluate the
veteran's service-connected cervical spine disability under
both the former and the current schedular criteria for the
applicable periods, keeping in mind that the revised criteria
may not be applied to any time period before the effective
date of the change. See 38 U.S.A. § 5110(g) (West 2002);
VAOPGCPREC 3-2000; Green v. Brown, 10 Vet. App. 111, 117
(1997).
Initial Rating for Cervical Spine Disability
The Veteran's claim for service connection for a cervical
spine disability was received in July 2001. The July 2002
rating decision granted service connection for post-traumatic
cervical myeloradiculopathy (right, C6, C7, and C8 roots) and
assigned an initial disability rating of 10 percent,
effective from July 17, 2001. By subsequent rating decision
of July 2007 during the pendency of the initial rating
appeal, a 20 percent "staged" initial rating was granted
for the period from May 15, 2007.
The evidence of record includes multiple private and VA
examination reports. A private chiropractic report dated in
June 2001 noted complaints of pain and stiffness in the neck
area accompanied by occipital headaches. Additionally, there
was discomfort radiating into the shoulder area and some
weakness of the elbow after exertion. Physical examination
of the cervical spine revealed discomfort on flexion,
extension, and lateral bending; however, the Veteran
exhibited full range of motion. X-rays of the cervical spine
demonstrated disc disease involving the C5-C6 vertebral disc
space with reduction in disc height, abnormal flexion,
extension and early osteophyte formation.
Upon VA examination dated in September 2001, muscle strength
was normal in the arms and deep tendon reflexes were equal 2+
in the upper extremities. Physical examination of the
cervical spine demonstrated mild spasms in the lower cervical
area. Flexion was to 35 degrees. Extension was to 40
degrees. Rotation was to 45 degrees, bilaterally.
Upon VA examination dated in May 2002, cervical spine flexion
was to 35 degrees. Extension was to 30 degrees. Lateral
flexion was to 20 degrees, bilaterally. There was mild
tenderness on C5-C6 on the right side. Additionally, there
was mild paraspinal spasm noted on the right trapezius
muscle.
A private orthopedic opinion dated in April 2003 indicated a
diagnosis of a large desiccated but herniated disc of C3-C4
with significant thecal sac contact, secondary spondylotic
changes extending from C-3 to C-5, and persistent discopathy
and facet sclerosis to the level C-7.
Upon VA examination dated in May 2003, the Veteran was able
to undress and dress himself without difficulty. There was
no evidence of spasm or tenderness along the cervical spine.
Flexion was to 65 degrees, with pain at the extreme.
Extension was to 50 degrees, without pain. Lateral flexion
was to 30 degrees, bilaterally, without pain. Rotation was
to 60 degrees, on the left, and to 40 degrees, on the right,
without pain. Deep tendon reflexes were equal and active in
the upper extremities. There was no sensory loss or weakness
noted. Tinel and Phalen signs were negative. There was no
evidence of neurological defects or radiculopathy in the
upper extremities. The examiner opined that there was no
objective evidence in support of the Veteran's complaints and
that the Veteran was able to work.
Upon VA examination dated May 15, 2007, cervical flexion was
to 20 degrees. Extension was to 25 degrees. Lateral flexion
was to 15 degrees, bilaterally. There was tenderness and
spasm over the neck and paravertebral cervical muscles of C5-
C6, bilaterally. Spurling sign was positive on the right
side.
Upon VA examination dated in July 2009, the Veteran presented
with complaints of worsening pain. The Veteran submitted
that he experienced fatigue, decrease in range of motion,
stiffness, weakness, pain, and spasms. Physical examination
revealed cervical spine flexion to 30 degrees. Extension was
to 14 degrees. Lateral flexion was to 20 degrees,
bilaterally. Rotation was to 22 degrees, bilaterally.
Although there was objective evidence of pain on motion,
there was no additional limitation after repetitive motion.
After a review of the evidence, the Board finds that, for the
initial rating period prior to May 15, 2007, the service-
connected post-traumatic cervical myeloradiculopathy (right,
C6, C7, and C8 roots) is shown to more nearly approximate
moderate limitation of motion of the cervical spine, as
required for a 20 percent disability rating under old rating
criteria at Diagnostic Code 5290. Under Diagnostic Code
5290, a 20 percent rating is warranted for moderate
limitation of motion of the cervical spine. As noted, the
normal findings for range of motion of the cervical spine are
flexion to 45 degrees, extension to 45 degrees, lateral
flexion, right and left, to 45 degrees, and rotation, right
and left, to 80 degrees. 38 C.F.R. § 4.71a, Plate V.
There are multiple VA examination reports that demonstrate
limitation of motion of the cervical spine that more nearly
approximates moderate limitation of motion of the cervical
spine as required for the next higher rating of 20 percent
under Diagnostic Code 5290. The evidence that reflects on
the initial rating prior to May 15, 2007 includes a VA
examination dated in September 2001 that fund rotation was to
45 degrees, bilaterally. In May 2002, lateral flexion was to
20 degrees, bilaterally. A VA examination dated in May 2003
measured lateral flexion to 30 degrees, bilaterally.
Additionally, both the September 2001 and May 2002 VA
examiners noted the presence of muscle spasms in the cervical
spine. Accordingly, the Board finds that the Veteran's
cervical spine disability warrants an initial disability
rating of 20 percent for the initial rating period prior to
May 15, 2007. Diagnostic Code 5290.
In light of the Board's findings, the Veteran's service-
connected post-traumatic cervical myeloradiculopathy (right,
C6, C7, and C8 roots) will be rated as 20 percent disabling
throughout the pendency of this initial rating appeal. A
review of the record does not demonstrate that the Veteran's
cervical spine disability has been for any period of initial
rating appeal more nearly approximated severe limitation of
motion of the cervical spine, or severe intervertebral disc
syndrome, under the old rating criteria, as required for a
higher initial disability rating. The evidence also does not
demonstrate that the Veteran's cervical spine disability has
been for any period more nearly approximated forward flexion
of 15 degrees or less, or intervertebral disc syndrome with
incapacitating episodes having a total duration of at least
four weeks but less than six weeks during the past 12 months,
such as to warrant a disability rating higher than 20 percent
at any time during the appellate period from September 26,
2003.
A review of the evidence of record demonstrates that the
cervical spine flexion has been measured, at its worst, to be
limited to 30 degrees. Cervical ankylosis has not been
demonstrated for any period. The evidence does not show
severe symptoms of intervertebral disc syndrome with
recurring attacks and intermittent relief. Finally, the
competent evidence does not reflect that the Veteran has
experienced periods of acute signs and symptoms due to
intervertebral disc syndrome that requires bed rest
prescribed by a physician and treatment by a physician.
Hence, the weight of the evidence is against a higher initial
rating than 20 percent for any period of initial rating
appeal. Accordingly, the Board finds that a higher initial
disability rating than 20 percent for post-traumatic cervical
myeloradiculopathy (right, C6, C7, and C8 roots) is not
warranted for any period of this initial rating appeal.
In reaching this decision the Board considered the provisions
of 38 C.F.R. §§ 4.40, 4.45 and 4.59 in rating the Veteran's
cervical spine disability. At no time, however, have such
signs as disuse muscle atrophy due to pain been objectively
shown, nor has pain caused such pathology as to equate to
cervical ankylosis.
Extraschedular Consideration
Pursuant to § 3.321(b)(1), the Under Secretary for Benefits
or the Director, Compensation and Pension Service, is
authorized to approve an extraschedular evaluation if the
case "presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards." 38 C.F.R. § 3.321(b)(1).
The question of an extraschedular rating is a component of a
claim for an increased rating. See Bagwell v. Brown, 9 Vet.
App. 337, 339 (1996). Although the Board may not assign an
extraschedular rating in the first instance, it must
specifically adjudicate whether to refer a case for
extraschedular evaluation when the issue either is raised by
the claimant or is reasonably raised by the evidence of
record. Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008).
If the evidence raises the question of entitlement to an
extraschedular rating, the threshold factor for
extraschedular consideration is a finding that the evidence
before VA presents such an exceptional disability picture
that the available schedular evaluations for that service-
connected disability are inadequate. Therefore, initially,
there must be a comparison between the level of severity and
symptomatology of the claimant's service-connected disability
with the established criteria found in the rating schedule
for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria
reasonably describe the claimant's disability level and
symptomatology, then the claimant's disability picture is
contemplated by the rating schedule, the assigned schedular
evaluation is, therefore, adequate, and no referral is
required. In the second step of the inquiry, however, if the
schedular evaluation does not contemplate the claimant's
level of disability and symptomatology and is found
inadequate, the RO or Board must determine whether the
claimant's exceptional disability picture exhibits other
related factors such as those provided by the regulation as
"governing norms." 38 C.F.R. 3.321(b)(1) (related factors
include "marked interference with employment" and "frequent
periods of hospitalization").
When the rating schedule is inadequate to evaluate a
claimant's disability picture and that picture has related
factors such as marked interference with employment or
frequent periods of hospitalization, then the case must be
referred to the Under Secretary for Benefits or the Director
of the Compensation and Pension Service for completion of the
third step--a determination of whether, to accord justice,
the claimant's disability picture requires the assignment of
an extraschedular rating.
38 C.F.R. 3.321(b)(1).
In this case, with regard to the relevant rating period prior
to October 19, 2006 when a TDIU was in effect, the rating
criteria contemplate the manifestations of the Veteran's
cervical spine disability. The schedular rating criteria
contemplate ratings based on limitation of motion, including
due to painful motion or other orthopedic factors outlined in
38 C.F.R. § 4.45 and 38 C.F.R. § 4.45, radiculopathy, and
incapacitating episodes. There is no indication that the
cervical spine disability has markedly interfered with his
employment (i.e., beyond that contemplated in the assigned 20
percent rating) during the relevant period. See 38 C.F.R. §
4.1 ("Generally, the degrees of disability specified are
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to
the severity of the several grades of disability").
Moreover, the cervical spine disability has been shown to
warrant frequent periods of hospitalization, or to otherwise
render impractical the application of the regular schedular
standards. Therefore, referral for consideration of an
extraschedular evaluation for the cervical spine disability
is not warranted. 38 C.F.R.
§ 3.321(b)(1). Other considerations of all service connected
disabilities on employment have been considered and addressed
in the determinations of eligibility for TDIU and in the
assignment of the effective date for TDIU.
Earlier Effective Date for TDIU
Unless specifically provided otherwise in the statute, the
effective date of an award based on an original claim for
compensation benefits shall be the date of receipt of the
claim or the date entitlement arose, whichever is later. See
38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2009).
A TDIU claim is a claim for increased compensation, and the
effective date rules for increased compensation apply to a
TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000).
According to 38 C.F.R. § 3.400(o)(2), the effective date of
an increase in compensation is the earliest date as of which
it is factually ascertainable that an increase in disability
had occurred if the claim is received within one year from
such date; otherwise, the date of receipt of the claim. See
38 C.F.R. § 3.400(o)(2) (2009). See also Harper v. Brown, 10
Vet. App. 125, 126-27 (1997).
It is the established policy of VA that all veterans who are
unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. See 38 C.F.R. § 4.16 (2009). A
finding of total disability is appropriate "when there is
present any impairment of mind or body which is sufficient to
render it impossible for the average person to follow a
substantially gainful occupation." See 38 C.F.R. §§
3.340(a)(1), 4.15 (2009).
In determining whether unemployability exists, consideration
may be given to the Veteran's level of education, special
training and previous work experience, but not to his age or
to any impairment caused by non service-connected
disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2009).
A total disability rating for compensation may be assigned,
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities, provided that,
if there is only one such disability, this disability shall
be ratable at 60 percent or more. If there are two or more
disabilities, there shall be at least one disability ratable
at 40 percent or more and the combined rating must be 70
percent or more. See 38 C.F.R. § 4.16(a) (2009).
Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to
secure and follow a substantially gainful occupation by
reason of service-connected disabilities, but fails to meet
the percentage requirements for eligibility for a total
rating set forth in 38 C.F.R. § 4.16(a), such case shall be
submitted for extraschedular consideration in accordance with
38 C.F.R. § 3.321 (2009).
The Veteran contends that he is entitled to an effective date
prior to October 19, 2006, for the grant of TDIU.
Essentially, he asserts that he has been entitled to TDIU
since he retired from the police force in 1994. He further
contends that, due to the severity of his service-connected
disabilities, he is unable to secure employment.
For the reasons set forth below, the Board finds that an
effective date earlier than the currently October 19, 2006,
is not warranted for TDIU. First, the Board finds that the
Veteran's claim for TDIU was received on August 30, 2002.
The Board is obligated to review the record and make its own
determination as to whether there is any evidence of record
that can be construed as receipt of an earlier TDIU claim.
See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).
Upon review of the record, the Board finds that there is no
communication received prior to August 30, 2002 that can be
interpreted as a formal or informal claim for VA benefits.
Moreover, neither the Veteran nor his representative has
alleged an earlier date of claim.
Having established that the date of the Veteran's claim of
entitlement to TDIU was August 30, 2002, the Board's inquiry
moves to the matter of when it was factually ascertainable
that the Veteran was unemployable due to his service-
connected disabilities. The range of possible dates starts
one year before the date the TDIU claim was filed, August 30,
2001, and ends on the date as of which TDIU has been
established by the RO, October 19, 2006. See 38 C.F.R. §
3.400(o) (2009).
The Veteran's service-connected disabilities did not meet the
schedular criteria for consideration of TDIU under 38 C.F.R.
§ 4.16(a) until October 19, 2006. Service connection is in
effect for several disabilities. The Veteran's service-
connected bilateral hearing loss and right medial elbow and
forearm scars have been rated as noncompensable. Occipital
headaches and right elbow osteoarthritis have been rated as
10 percent disabling since July 17, 2001. Tinnitus has been
rated as 10 percent disabling since August 30, 2002. His
cervical spine disability has been rated as 20 percent
disabling, since July 17, 2001. The post-traumatic ulnar
neuritis on the right upper extremity has been rated as 30
percent disabling since July 17, 2001. The Veteran's PTSD
was assigned an initial disability rating of 30 percent,
effective August 30 , 2002, and increased to 70 percent
disabling, effective October 19, 2006.
For a Veteran to prevail on a claim for TDIU on an
extraschedular basis, the record must reflect some factor
which takes the case outside of the norm. The sole fact that
the Veteran was unemployed or had difficulty obtaining
employment is not enough. See Van Hoose v. Brown, 4 Vet.
App. 361, 363 (1993). In this case, the evidence of record
does not show that the Veteran's service-connected
disabilities were so exceptional or unusual that they were
sufficient to cause the Veteran to be unemployable prior to
October 19, 2006.
In support of his claim, the Veteran submitted a statement
from his private treatment provider, dated in May 2003,
indicating that he was experiencing worsening pain in the
right elbow with weakness and paresthesias. The Veteran also
alleged to have poor motor control of his right hand, which
made it difficult for him to write, and the constant pain in
the right elbow made it difficult for the Veteran to perform
his activities of daily living. Additionally, the Veteran
was experiencing chronic daily headaches and jaw pain. This
pain interfered with the Veteran's ability to sleep and
required the usage of narcotic analgesics and muscle
relaxers. There was also experiencing decreased range of
motion of the right shoulder, right elbow and cervical spine
and there was decreased sensation and grip strength in the
right arm.
A private orthopedic opinion dated in April 2003 revealed a
diagnosis of a large desiccated but herniated disc of C3-C4
with significant thecal sac contact, secondary spondylotic
changes extending from C-3 to C-5, and persistent discopathy
and facet sclerosis to the level C-7. The examiner also
indicated that the Veteran was receiving treatment for PTSD,
which was neither improving nor worsening. At that time, his
PTSD symptomatology included anxiety, depression, fatigue,
rage, loss of impulse control, poor sleep, flashbacks,
nightmares and early morning awakening.
Upon VA orthopedic examination dated in May 2003, the
examiner opined that there was no objective evidence in
support of the Veteran's complaints. For instance, there was
no evidence of neurological defects or radiculopathy in the
upper extremities. The VA examiner concluded that the
Veteran was able to maintain employment.
Upon VA psychological evaluation dated in May 2003, the
examiner opined that the Veteran's psychiatric disability did
not preclude him from attaining employment. He indicated
that the Veteran had been generally able to do his job until
he chose early retirement from the police force in 1994.
Upon VA psychiatric examination dated in January 2004, the
examiner opined that the Veteran was not rendered totally
unemployable due to his symptoms of PTSD. The examiner noted
that the Veteran's disability had interfered with his
functioning as a police officer; however, the examiner opined
that the Veteran was capable of performing some other limited
job duties in another field.
Upon VA examination dated October 19, 2006, a VA examiner
opined that the Veteran was unemployable due to his
psychiatric difficulties. In April 2007, the RO determined
that a disability rating of 70 percent was warranted for PTSD
effective October 19, 2006. Consequently, the Veteran met
the schedular criteria and TDIU was warranted effective
October 19, 2006.
As discussed above, the question before the Board is whether
it was factually ascertainable that the service-connected
disabilities made it impossible for the Veteran to follow a
substantially gainful occupation prior to October 19, 2006.
Crucially, VA examiners in May 2003 and June 2004 did not
opine that the Veteran's service-connected disabilities
created marked interference with employment such as to
warrant an extraschedular rating. See 38 C.F.R. § 3.321
(b)(1), 4.16(b) (2009). Therefore, after a thorough review
of record, the Board finds that the totality of the evidence
demonstrates that the Veteran was not precluded from working
due to his service-connected disabilities prior to October
19, 2006.
With regard to frequent hospitalizations, the Veteran does
not allege and the evidence does not demonstrate that his
service-connected disabilities required frequent
hospitalizations for the period from August 30, 2001, to
October 19, 2006. Accordingly, there is no other medical
evidence to suggest his TDIU claim should be considered on an
extraschedular basis. In sum, the Board finds that based on
the evidence of record, entitlement to TDIU was not warranted
on an extraschedular basis prior to October 19, 2006.
Accordingly, for the reasons and bases expressed above, the
Board finds that an effective date for TDIU earlier than the
currently assigned October 19, 2006 is not warranted;
therefore, the benefit of earlier effective date sought on
appeal is denied.
ORDER
An initial disability rating for post-traumatic cervical
myeloradiculopathy (right, C6, C7, and C8 roots) of 20
percent, for the period prior to May 15, 2007, is granted.
An effective date than October 19, 2006 for the grant of TDIU
is denied.
____________________________________________
J. Parker
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs